New McVeigh files surface

Over 3,000 documents withheld by FBI

Lynn Bartels, News Staff Writer

Published May 11, 2001 at midnight

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Timothy McVeigh's death watch took a stunning turn Thursday when the Justice Department admitted it had withheld more than 3,000 FBI documents that should have been turned over to his defense team before his 1997 trial in Denver.

The information was discovered by an FBI archivist who was routinely collecting information on the Oklahoma City bombing.

The Justice Department said it was an honest mistake, but McVeigh's lawyers were outraged.

"The day we kill somebody with hidden evidence is the day the Constitution fails," said Christopher Tritico of Houston, who was part of McVeigh's defense team.

McVeigh is scheduled to be executed Wednesday, but whether the newly discovered documents are enough to delay his date with death or lead to a new trial is unknown.

It was McVeigh who requested his appeals be stopped and an expedited execution date be set. He also has admitted his guilt in a recently released book about the April 19, 1995 bombing that killed 168 people.

"We're considering all our options," McVeigh lawyer Nathan Chambers said, after the documents were delivered Thursday to his Blake Street office in Denver.

An identical set of documents was delivered to McVeigh's other attorney, Rob Nigh of Tulsa.

Chambers said he has spoken to McVeigh, who is on death row in a federal prison in Terre Haute, Ind.

"Mr. McVeigh will give the issue thoughtful consideration, as he always does, and will decide on a course of action," said Chambers, who became McVeigh's attorney during the appeals process.

He said the defense team has already starting poring over the documents.

"We have a lot of work to do and after conducting as thorough research as we can in the time alloted, and after talking with our client, we will make a decision," Chambers said.

The idea that the execution might be delayed or a new trial granted because of an FBI lapse is staggering to McVeigh juror Doug Carr of Fort Collins.

"I was wondering if something might come up at the last minute but I thought his lawyers would try to do something or he would say something," Carr said. "I never thought it would come from the government."

McVeigh was convicted in federal court in Denver of conspiracy, using a weapon of mass destruction, destroying a federal building and murdering eight federal agents. U.S. Judge Richard Matsch of Denver sentenced him to death.

A second Colorado jury found co-defendant Terry Nichols guilty of lesser charges. He was sentenced to life in prison.

The Justice Department informed McVeigh's defense team on Tuesday of the archivist's discovery.

"While the Department is confident the documents do not in any way create any reasonable doubt about McVeigh's guilt and do not contradict his repeated confessions of guilt, the Department is concerned that McVeigh's attorneys were not able to review them at the appropriate time," said Justice Department spokesperson Mindy Tucker.

The 3,135 documents from 46 FBI offices include investigation reports, interview notes called '302s" and physical evidence, including photographs.

The Justice Department also released a letter from prosecutor Sean Connelly, who has been part of the government's team since McVeigh's trial opened in Denver on March 31, 1997.

"We do not believe anything being produced is. . .material bearing on the federal convictions or sentences of Timothy McVeigh or Terry Nichols. "Nonetheless," Connelly wrote, "many of the materials -- in particular the FBI 302s and inserts -- should have been produced under the reciprocal discovery agreement."

The attorneys who were part of McVeigh's original defense team said it was outrageous that the government documents produced six years ago would mysteriously surface on the eve of McVeigh's execution.

But Tritico said he believes that the publication of American Terrorist; Timothy McVeigh & The Oklahoma City Bombing will make it difficult for his former client to get a new trial. McVeigh confesses to the bombing, shows no remorse and explains why he had to shake up the Amerian people.

"With Tim's book it leaves little room to ask for a new trial," Tritico said.

The '302s" -- copies of interviews by FBI agents -- likely have to do with witness sightings of possible accomplices, said Stephen Jones, McVeigh's former lead attorney.

"I would guess it has something to do with John Doe 2," Jones said. "That's the thing that was always most embarrassing to the government."

Witnesses say someone was with McVeigh in Junction City, Kan., when he rented the Ryder truck used to carry the homemade bomb. When the government couldn't find John Doe 2 it concluded he never existed.

McVeigh told his attorneys he alone rented the truck, but Jones said he believes his former client is covering up for an as-yet-unidentified accomplice.

Jones said the errant documents could only be evidence helpful to the defense.

"I don't think the FBI would have somehow lost anything that was incriminating to my client," Jones said.

Jones has no guess whether the execution might be postponed.

"I'm content to leave it with Judge Matsch," Jones said. "If he thinks there's something in that material, he'll stop the execution on a dime. But if there's nothing to it, he won't interfere."

At the penitentiary in Terre Haute, spokesman Daniel Dunne said plans for McVeigh's Wednesday execution remain in place, pending a court order or official stay of execution. He said those orders could be received by telephone up to the last seconds of McVeigh's life.

Dr. Paul Heath, who survived the boming and who attended 58 funerals of victims, said from Oklahoma City: "I can't speak for every survivor, but I can speak for my own family. I have every confidence Judge Matsch will adjudicate this new bump in the road to justice."

News staff writers Kevin Flynn and Karen Abbott and wire services contributed to this report.

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